Who's Really Protecting the Geneva Conventions?

Fri, 13 Mar 2009 18:04:20 +0000 – By Eliana JohnsonWriter, FOX News Channel's "Hannity"

As acandidateObama made much of the Bush administration's lawless and abusive detainee policy. A Pentagon review of conditions at Gitmo--undertaken at the request ofPresidentObama, and released in February--concludes that conditions at the military prison meet all requirements of the Geneva Conventions.

The Washington Post was no kinder. In early January, the Post complained of the Bush administration's "extreme theories about the detention of terrorism suspects."

The basis of the complaints stemmed from the fact that the Bush administration, after much debate, ruled that terrorists captured on the battlefield are not entitled to P.O.W. status, as defined by the Geneva Conventions. It is surprising, then, than just over 20 years ago these same newspapers applauded the Reagan administration for refusing to ratify an amendment to the original Geneva Conventions--Protocol I--that would have extended its protections to "liberation forces" and terrorists around the world.

In an editorial titled "Denied: A Shield for Terrorists," the New York Times worried that Protocol I would serve as "possible grounds for giving terrorists the legal status for P.O.W.'s" and concluded, "Mr. Reagan made the sound choice." The Washington Post followed suit, charging that the new rule would undermine the "traditional purpose of humanitarian law, which is to offer protection to noncombatants by isolating them from the perils of combat operations."

It was out of a deep respect for the Geneva Conventions, and a concern for preserving their integrity, that P.O.W. protections were not extended to terrorists--and for this concern the Reagan administration was rightly applauded.

Humanitarian law has, for centuries, attempted to shield civilians from the horrors of war. Terrorists are deprived of P.O.W. status for this reason; encouraging combatants to distinguish themselves from civilians by wearing a uniform and by carrying their arms openly allows civilians to better protect themselves from the perils of combat. Bringing combatants, who hide among civilians, into the framework of the Geneva Conventions endangers civilians, and, the reasoning goes, a combatant who deliberately fails to distinguish himself from civilians is guilty of such an egregious violation of the law that he loses his rights to protections under the Geneva Conventions. Doing away with the distinction between terrorists and civilians in the name of humanitarian law is not only illogical in theory; in practice, it undermines the humanitarian benefits of the law.

P.O.W. status also extends considerable benefits to those who qualify for it. Article 17 of the Geneva Conventions prohibits any penalties at all for a P.O.W. who refuses to cooperate with an interrogator. The Article states that no "form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." As Douglas J. Feith, an Undersecretary of Defense for Policy from 2001 to 2005 said in a recent interview:

The whole point of being a prisoner of war is that you didn't do anything wrong, you're not being punished, you're just being kept off the battlefield. And when the war is over, you're released.

Protocol I emerged at a conference hosted by the International Committee for the Red Cross, convened between 1974 and 1977, to update the original Geneva Conventions of 1949. At these meetings, humanitarian law's traditional goal of protecting civilians from warfare was subjugated to that of advancing certain political causes. To draft Protocol I, the conference sought the input of "national liberation movements" from around the world: groups including the Palestine Liberation Organization, the Angola National Liberation Front (FNLA), and the Mozambique Liberation Front. Protocol I extended P.O.W. protections to peoples struggling against "colonial domination," "alien occupation," and "racist regimes."

Many Western powers spoke against adopting the Protocol, arguing that it would undermine humanitarian law and endanger essential principles of human rights by politicizing the Geneva Conventions--that is, by granting recognition to groups based on their motives, robbing the Conventions of their historic neutrality. This neutrality was considered a great step forward for both world peace and human rights.

Were liberation movements to be protected by the Geneva Conventions, the difficulty of determining which movements qualified as such arose. The Irish representative argued that there was no objective standard by which to judge whether a group was in fact a national liberation movement: "Any separatist band of armed criminals in a colonial territory might claim to be engaged in an armed struggle in furtherance of their people's right to self-determination."

Protcol I was also dangerous because it gave the advantage to rogue groups fighting against sovereign states. In a piece he wrote recording the conflict surrounding Protocol I, Mr. Feith, then a Deputy Assistant Secretary of Defense in the Reagan Administration and one of the chief voices against ratifying the provision, noted that "the irregular force and its state-enemy would both enjoy rights under Protocol I and the 1949 Geneva Conventions, but only the latter would command the kind of resources (e.g. law courts and medical facilities) required for the fulfillment of the corresponding obligations." Feith notes that the United States representative at the conference echoed this sentiment, charging that "Liberation movements could not fulfill all their obligations under the Conventions...The only benefit which those movements would receive...would be enhanced political status, but nothing on the humanitarian plane."

Despite vociferous objections from Western countries, the vote on Protocol I was 87 nations in favor and one--that of Israel--against. Eleven nations, including the United States, abstained from voting. Perhaps no group was more pleased that the PLO, as the Protocol in essence sanctioned its terrorist tactics in the name of a "liberation struggle." As Feith records, the conference record indicates that the PLO representative expressed "deep satisfaction at the result of the vote," in particular at "the overwhelming majority against the single vote cast by the Zionist representative." He went on to note that PLO terrorists would enjoy all the protections of the Geneva Conventions because "they were suffering under a racist regime, since Zionism has been recognized by the United Nations as a form of racism."

Though the Carter administration signed Protocol I, President Reagan did not submit it to the Senate for ratification. In a January 1987 message to the Senate, he noted that the United States has traditionally been at the forefront of creating and refining humanitarian law, with the "objective of giving the greatest possible protection to victims of such conflicts, consistent with legitimate military requirements." Protocol I, the President said, would "endanger civilians among whom terrorists and other irregulars attempt to conceal themselves" and unduly "politicize humanitarian law." He concluded: "We must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law." It was thus out of a deep respect for the Geneva Conventions, and a concern for preserving their integrity, that P.O.W. protections were not extended to terrorists--and for this concern the Reagan administration was rightly applauded.

Not surprisingly, the issues involved in the rejection of Protocol I came to the fore once again in the wake of 9/11. The first question was whether the Geneva Conventions applied to the U.S. conflict with the Taliban. Since Afghanistan was widely considered a failed state, it was not self-evident that the Geneva Conventions would apply. Mr. Feith, back at the Department of Defense serving as Undersecretary for Policy, played a key role in deciding the issue. In a recent interview, he said that he argued that the United States should not "weasel out" of the Conventions on grounds of Afghanistan's failed statehood---an argument that the president accepted. As established by the rejection of Protocol I, the Geneva Conventions would not apply to the nation's war against Al Qaeda, or to the combatants captured on the battlefield of the War on Terror. Those combatants, the president ruled, would receive "humane treatment." In light of the debate surrounding Protocol I, this decision should not have been controversial; rather, it had been settled, and settled decisively, in 1987.

One of the ironies of the War on Terror is that many in the Bush administration have been tarred as war criminals, Mr. Feith chief among them. In reality, they took no shortcuts around the Geneva Conventions, although those shortcuts were readily available to them. Not only that, but, as the Protocol I debates demonstrate, the distinctions they drew between terrorists and lawful combatants are made to protect innocent civilians and preserve the integrity of international humanitarian law against those who would hijack it for political purposes. A glance back at the history of the debate on this issue demonstrates that it is they who have remained steady advocates of a principled position, and their critics whose views have zigzagged with the times.

The conclusion of the latest report on Guantanamo Bay vindicates their efforts. But don't hold your breath for apologies from the leading editorial pages.